Lochhead v The Queen
[2020] NZCA 668
•18 December 2020 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA567/2020 [2020] NZCA 668 |
| BETWEEN | JASON HEATH LOCHHEAD |
| AND | THE QUEEN |
| Court: | French, Whata and Mander JJ |
Counsel: | Applicant in person |
Judgment: | 18 December 2020 at 9 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against sentence is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Mr Lochhead was convicted in the District Court of family violence offending against his ex-wife following pleas of guilty.[1] Judge Gilbert sentenced him to a term of imprisonment of two years and three months.[2] Mr Lochhead appealed the sentence to the High Court but the appeal was dismissed by Doogue J.[3]
[1]Attempting to dissuade a witness from giving evidence — representative (Crimes Act 1961, s 117(a)); threatening to kill — representative (Crimes Act, s 306); publishing an intimate visual recording (Crimes Act, s 216J); breaching a protection order (Family Violence Act 2018, ss 9, 90(a) and 112(1)(a)); and wilful damage — representative (Summary Offences Act 1981, s 11(1)(a)).
[2]R v Lochhead [2020] NZDC 14301 [District Court decision].
[3]Lochhead v R [2020] NZHC 2334 [High Court decision].
Mr Lochhead now seeks leave to appeal to this Court. Leave is required because the proposed appeal would be a second appeal.[4]
[4]Criminal Procedure Act 2011, s 253.
In a minute dated 21 October 2020, Goddard J directed that the application for leave should be heard on the papers.
Background
Mr Lochhead and the victim were in a relationship for five years and had one child.
In December 2018, the victim obtained a protection order against Mr Lochhead. Despite the order, Mr Lochhead continued to send her multiple voice messages over Whatsapp and on three occasions in August 2019 he went to her address uninvited and refused to leave when asked to do so. On one of those occasions, he punctured the rear tyres of the victim’s car with a knife and on another occasion smashed a bedroom window. This resulted in charges being laid.
While on bail, Mr Lochhead sent the victim a series of abusive text messages threatening violence. At sentencing, the Judge said he could not recall having ever seen a series of texts and threats that were so vitriolic, hateful and graphic.[5] Seven of the messages contained explicit threats to kill the victim, involving threats to slit her throat, cave in her skull, remove her in a body bag and cut off her head.
[5]District Court decision, above n 2, at [12].
Two messages also demanded that the victim go to a police station and withdraw her complaint. If she failed to do that, Mr Lochhead threatened her that he would gain custody of their daughter and the victim would never see her again.
Then on 23 November 2019, without the victim’s permission, Mr Lochhead sent an intimate video taken of her to her mother.
In total, Mr Lochhead faced five changes to which he subsequently pleaded guilty. The charges were:
(a)Attempting to dissuade a witness from giving evidence.
(b)Threatening to kill (representative).
(c)Publishing an intimate video recording.
(d)Breach of a protection order (representative).
(e)Wilful damage (representative).
In sentencing Mr Lochhead, Judge Gilbert adopted starting points of 12 months’ imprisonment for the representative breach of protection order and wilful damage charges, and two and a half years imprisonment for the charges of dissuading a witness and threatening to kill.[6] He then applied uplifts of six months for the publication of the video recording and a further uplift of three months for offending while on bail and while a protection order was in force.[7]
[6]At [38]–[39].
[7]At [40] and [42].
The Judge then adjusted the starting point by making reductions on account of totality (nine months),[8] Mr Lochhead’s mental health issues (15 per cent),[9] and his guilty plea (20 per cent).[10] Those adjustments resulted in an end sentence of two years and three months’ imprisonment.
[8]At [41].
[9]At [44].
[10]At [45].
In granting a discount for mental health issues, the Judge relied on a report from a psychologist. The report stated that Mr Lochhead was suffering from an adjustment disorder arising from the breakdown of the marriage and the loss of access to his daughter who had been taken into state care.
On appeal to the High Court, Mr Lochhead did not challenge the Judge’s starting point but argued that the discounts granted were inadequate and that a discount should have been granted for time spent on bail with a curfew. Doogue J rejected those arguments and held that the end sentence was not manifestly excessive.
Grounds of the proposed appeal
Mr Lochhead wishes to advance several grounds of appeal:
(a)The threatening text messages were misinterpreted or not proved.
(b)He did not plead guilty to the wilful damage charge at his first appearance because he had already discussed reparation for the punctured tyres with the victim and the smashing of the window was accidental.
(c)There was an error regarding alleged curfew breaches.
(d)The discount for mental health issues was inadequate.
(e)The appropriate sentence was home detention.
Analysis
This Court will only grant leave to bring a second appeal if satisfied that the proposed appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.[11] The threshold has been held to be a high one.[12]
[11]Criminal Procedure Act, s 253(3).
[12]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764; and Gorgus v R [2016] NZCA 508 at [8].
As will be apparent, the proposed grounds of appeal are all specific to Mr Lochhead’s case and do not involve matters of general or public importance.
The application for leave must therefore stand and fall on whether we are persuaded there is a risk of a miscarriage of justice unless the proposed appeal is heard.
We are not so satisfied. First, having pleaded guilty on the basis of the summary of facts, it is now not open to Mr Lochhead to contest the existence and meaning of the text messages or to claim that the damage to the window was accidental ie not deliberate or wilful.
Secondly, while it is correct that in the High Court two of the three alleged breaches of curfew were set aside, they were not an aggravating factor taken into account by either Judge Gilbert or Doogue J.[13] Further in so far as they may have influenced the former’s decision not to allow any credit for time spent on bail, there is a compelling argument to say that other aspects such as the fact of offending while on bail, the breach of the curfew that did occur and the breach of a condition not to contact the victim amply justified the decision not to allow any credit.
[13]High Court decision, above n 3, at [27].
As regards the size of the discount for mental health issues, the approach taken both in the District Court and in the High Court was that the adjustment disorder was only partly causative of the offending and therefore did not warrant a larger discount. That approach was plainly open to both Courts.
It was also open to both Judges to take the view that the guilty pleas could not reasonably be considered as having been entered at the first possible opportunity so as to attract the full 25 per cent discount. The charges were laid variously in August 2019, and February and March 2020, and the guilty pleas were only entered in May 2020.
Finally, it is well established that the decision whether to impose a sentence of home detention or not is a matter of judgment for the sentencing judge.
Non-custodial sentences were advocated by counsel for Mr Lochhead at sentencing and carefully considered by Judge Gilbert. The Judge acknowledged that the decision to send someone to prison (especially for the first time as in Mr Lochhead’s case) was a big one. However in light of the persistent and serious nature of the offending aggravated by the attempt to interfere with the course of justice, the Judge considered an end sentence of 27 months was a proportionate response to the offending and was the only appropriate response having regard to the statutory purposes and principles of sentencing.[14]
[14]District Court decision, above n 2, at [47]–[48].
In our view, there is not a tenable argument that this conclusion was demonstrably wrong so as to create the risk of a miscarriage of justice. Likewise, Doogue J’s conclusion that the end sentence was not manifestly excessive but was open to the District Court in all the circumstances cannot be impugned.
We therefore decline the application for leave to bring a second appeal against sentence.
Solicitors:
Crown Law Office, Wellington for Respondent
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